New Litigation

January 25, 2012

Eli Lilly and Company Sues Accord Healthcare for Patent Infringement of Lung Cancer Drug ALIMTA

Indianapolis, IN – Patent attorneys for Eli Lilly and Company of Indianapolis, Indiana filed a patent infringement suit in the Southern District of Indiana alleging that Accord Healthcare, Inc., USA of Durham, North Carolina infringed patent no. 7,772,209, Antifolate combination therapies, which has been issued by the US Patent Office.

The complaint states that in December Accord sent a letter notifying Lilly that Accord had submitted an Abbreviated New Drug Application (ADNA) to the Food and Drug Administration (FDA) for its generic version of Alimta. Lilly alleges that Accord’s proposed product and labeling will infringe its patents. Lilly seeks an injunction to prevent Accord from developing, manufacturing and selling the allegedly infringing product.

Practice Tip: Lilly has already won a patent infringement case over Alimta. As we blogged about last year, the District Court of Delaware affirmed the validity of Alimta patents. This lawsuit, however, is over a patent that was not the subject of the District Court of Delaware’s decision.
Continue reading

January 23, 2012

Angie’s List Sues Click and Improve over Theft of Computer Files, Breach of Contract: Case Removed to Federal Court

By Overhauser Law Offices, LLC

Indianapolis, IN – A trade secret and breach of contract lawsuit filed in Marion County Superior Court has been removed to the Southern District of Indiana. In December, intellectual property attorneys for Angie’s List of Indianapolis, Indiana filed a suit in Marion County Superior Court alleging Click and Improve, Inc. d/b/a, ClickAndImprove.com, Avi Zikry and Jesse Friedman of New York State breached a membership agreement by misappropriating trade secrets and committing computer fraud and abuse.

Angie’s List provides consumer reviews of different service providers. Click and Improve is a competitor website started in 2011. Zikry and Friedman are Click and Improve’s principles. The complaint alleges Zikry and Friedman became a member of Angie’s List in 2011 and signed a membership agreement that limited the ways that members could use the information on Angie’s List. The complaint alleges Zikry and Friedman essentially stole reviews and other information on Angie’s List and published the information on their competing website. The complaint states over 24,000 proprietary files were stolen. The complaint makes claims of breach of contract, tortuous interference with contract, misappropriation of trade secrets, computer fraud and abuse, computer trespass, conversion, fraud and theft. Angie’s List seeks an injunction, damages, treble damages, costs and attorney fees.

Practice Tip: Any case filed in state court that makes a federal claim can be removed to federal court upon request. Most intellectual property cases involve a federal claim under the federal patent, trademark or copyright laws. Here, however, the plaintiff made a federal claim under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030.
Continue reading

January 18, 2012

Syndicate Sales, Inc. Sues Hill’s Import, Inc. for Patent Infringement of Flower Vase

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent attorneys for Syndicate Sales, Inc. of Kokomo, Indiana filed a patent infringement suit in the Southern District of Indiana alleging Hill’s Import, Inc. of Quakertown, Pennsylvania infringed design patent no. D652,342, Plateau vase with constant size neck, known as the “Harshman patent, “which has been issued by the US Patent Office.

The complaint states that the patented vase design was created by artist Trent Harshman, who has assigned all his rights to Syndicate. Syndicate’s complaint states that Hill’s has never been granted any rights to sell or import the patented vase design. The complaint alleges that Hill’s infringed the patent by importing and selling vases that utilized the patented design. Syndicate’s patent attorneys have alleged that the vases in question were manufactured in by Shangdong Yiyaun Oking Glassware Company in China. Syndicate is seeking a declaration of infringement, an injunction, damages, attorney fees and costs.

Practice Tip: Syndicate Sales’ patent purports to cover a vase having a square bottom that morphs into a rounded top with a flange. This would seem to be a common shape, and, if Hill’s import does not get the case dismissed on jurisdictional ground, it can be expected to attack the validity of the patent on grounds of “obviousness.” Also, the complaint alleges that the vases Hill’s allegedly sold came from a factory in China and include Syndicate’s UPC code. This raises an issue of whether the Chinese factory had been authorized by Syndicate to make the vases. If so, Hills may have license defense. Alternatively, Hill’s may be entitled to be indemnified by its alleged Chinese supplier.
Continue reading

January 12, 2012

Update: FirePASS, Bombardier Patent Infringement Suit Over Aircraft Fire Prevention Systems Stayed Pending Patent Re-Examination

By Overhauser Law Offices, LLC

Indianapolis, IN – A patent infringement lawsuit over aircraft fire prevention systems has been put on hold until the US Patent Office completes a re-examination of the patents at issue in the case.

In June, patent lawyers for FirePASS IP Holdings and FirePASS Corporation of New York, New York filed a patent infringement lawsuit in the Southern District of Indianaalleging Bombardier, Inc. of Montreal, Canada, and Bombardier Aerospace Corporation, of Richardson, Texas, infringed four patents: No. RE 40,065, HYPOXIC FIRE PREVENTION AND FIRE SUPPRESSION SYSTEMS FOR COMPUTER CABINETS AND FIRE-HAZARDOUS INDUSTRIAL CONTAINERS; 6,418,752, Hypoxic fire prevention and fire suppression systems and breathable fire extinguishing compositions for human occupied environments; Patent No. 6,314,754, Hypoxic fire prevention and fire suppression systems for computer rooms and other human occupied facilities; and Patent No.7,207,392, Method of preventing fire in computer room and other enclosed facilities which have been issued by the US Patent Office. The complaint alleges that Bombardier sells and offers to sell products that infringe FirePASS’s patents. Specifically, FirePASS alleges that Bombardier has a contract to sell 40 CS300 aircraft to Republic Airways of Indianapolis, valued at $3.2 billion. FirePASS alleges that the aircraft contain flammability reduction means that infringe FirePASS’s patented technology. The Federal Aviation Administration has implemented new regulation requiring additional flammability reduction means to prevent fuel tank fires in aircraft.

Patent attorneys for the parties filed a joint motion requesting the stay, which was approved by the court. The motion notes that FIREPASS has filed a patent infringement lawsuit in the Eastern District of New York where the validity of the same four patents is at issue. The opposing party in that case had requested the re-examination. The judge in the New York case has also stayed that litigation pending the re-examination.

Practice Tip: It is common for patent infringement litigation to be stayed when the US Patent Office is re-examining the patent, although the district court is not required to stay the litigation. Each claim of a patent is presumed to be valid and enforceable, even if the patent is being re-examined. The US Patent Office offers this FAQ sheet that explains the re-examination process.
Continue reading

January 10, 2012

Coach Sues Kristy Davidson for Trademark and Copyright Infringement of the Coach Marks

By Overhauser Law Offices, LLC

Indianapolis; IN – Trademark lawyers for Coach Inc. of New York, New York filed a trademark and copyright infringement suit in the Southern District of Indianaalleging Kristy Davidson d/b/a Kristy’s Trends of Greenfield, Indiana infringed the Coach’s registered trademarks and copyrights, including the copyrighted works known as the “Coach Design Elements” including the SIGNATURE C DESIGNS, Registration No. VAu1-046658, COACH 70^th ANNIVERSARY SNAPHEAD PRINT Registration No. VA1-010-918, and COACH CLOVER DESIGN, which have been registered by the US Copyright Office, and approximately fifty trademarks that have been registered by the US Trademark Office.

The complaint alleges that Ms. Davidson is designed, distributed, sold, promoted and offered for sale products that bear the Coach marks and copyrights without authorization from Coach. Essentially, Coach claims the Ms. Davidson is offering counterfeit Coach products for sale. The complaint alleges that on November 7, 2011, a Coach Representative visited Kristy’s Trends in Greenfield, Indiana and purchased a handbag bearing the Coach marks, but that was not an authentic Coach handbag. The complaint alleges that the representative saw 20 additional handbags, six wallets, and a pair of boots bearing the Coach marks that was offered for sale. The complaint states that Coach’s trademark attorneys sent a cease and desist letter to Ms. Davidson thereafter. In response, Ms. Davidson surrendered handbags, wallets, sunglasses and boots bearing the Coach marks.

The complaint makes claims of copyright infringement, trademark infringement, trade dress infringement, false designation of origin, false advertising, trademark dilution, unfair competition, forgery and counterfeiting. Coach seeks an injunction, damages of $2,000,000 per counterfeit mark, actual and punitive damages, costs and attorney fees.

Practice Tip: Coach has been very aggressive in protecting its intellectual property rights in Indiana courts in the last year. Coach’s intellectual property attorneys have filed eight similar lawsuits in Indiana courts, which Indiana Intellectual Property Law and News has blogged and that are linked below.
Continue reading

January 9, 2012

Group Dekko Inc. Sues Byrne Electrical for Patent Infringement of an Electrical Receptacle Assembly

By Overhauser Law Offices, LLC

Fort Wayne, IN – Patent attorneys for Group Dekko, Inc. of Garrett, Indiana filed a patent infringement suit in the Northern District of Indiana alleging Byrne Electrical of Rockford, Michigan infringed patent no. 7,075,769, NEXT CONNECT ELECTRICAL RECEPTABLE ASSEMBLY, which has been issued by the US Patent Office.

The complaint alleges that Byrne is infringing the patent by making, using, offering for sale or selling a product called Interlink iQ that embodies that patented technology. Group Dekko sells competitive products called Next Connect and Perimeter. These products appear to be electrical configurations for office furniture. Dekko’s patent attorneys are seeking a declaration that its patent is valid and enforceable, an injunction, damages, attorney fees and costs.

Practice Tip: The complaint filed does not contain any details about where the allegedly infringing products have been sold or offered for sale, particularly whether any sales or marketing occurred in Indiana. In order to establish personal jurisdiction over the defendant, the plaintiff must demonstrate certain minimum contacts with the jurisdiction. The plaintiff here may need to show more to obtain personal jurisdiction. The Southern District of Indiana, for example, recently dismissed a patent infringement case where all the plaintiff alleged was that the defendant had a website offering the allegedly infringing product that was accessible in Indiana.
Continue reading

January 6, 2012

Wisconsin Court To Hear Simon Property Group Patent Infringement Claims Over Mobile Application For Mall Marketing: Case Dismissed from Indiana Court

By Overhauser Law Offices, LLC

Indianapolis, IN – A patent infringement suit filed in the Southern District of Indiana has been transferred to the Western District of Wisconsin. In April, patent lawyers for Simon Property Group of Indianapolis, Indiana filed a patent lawsuit against NorthMobileTech of Middleton, Wisconsin. In its complaint, Simon stated that NorthMobileTech has accused Simon of infringing NorthMobileTech’s patent, and Simon believed a patent infringement lawsuit against it is imminent. On April 20, 2011, the same day as Simon’s patent attorneys filed its suit, patent attorneys for NorthMobileTech filed a patent infringement lawsuit against Simon in the Western District of Wisconsin. Indiana Intellectual Property Law and News blogged about the case when it was filed.

Simon had filed requests to have the two lawsuits heard by the Southern District of Indiana, however, it has recently filed a motion to dismiss in the Indiana court, noting that the case in the Western District of Wisconsin was moving along quicker than the Indiana case.

The controversy is over Simon’s new application for mobile phones that allows users to access information about shopping malls and merchandise. NorthMobileTech is the owner of patent no. 7,805,130, which has been issued by the US Patent Office. This patented technology is a mobile phone application that allows shopping store and merchandise information to be transmitted to a wireless phone. According to an exhibit attached to Simon’s Complaint, a patent attorney for Fenwick Corporation, which has assigned its patent rights to NorthMobileTech, has sent a letter to Simon alleging that Simon’s mobile phone application infringes its patent. Simon’s application is called “Simon Malls – more choices.”

Practice Tip: This litigation has been quite contentious with both parties filing motions to compel discovery compliance and with Simon requesting sanctions. The parties have also briefed claim construction. The latest entry on PACER indicates that Magistrate Stephen L. Crocker will hear the parties discovery disputes tomorrow, January 6, 2012.
Continue reading

December 27, 2011

Brightpoint Suing Former Executive Over Trade Secrets

By Overhauser Law Offices, LLC

Indianapolis, IN – Brightpoint of Indianapolis has filed a lawsuit against former executive, Mitch Black, of Miami, Florida, alleging he has breached an employment contract that included protection of Brightpoint’s trade secrets. The lawsuit also names Brightstar Corporation as a defendant, arguing that the company knew or should have known that Mr. Black had violated trade secret laws.

According to an Indianapolis Star news report, Mr. Black left Brightpoint in 2010 and has recently taken a new job at Brightstar Corporation of Miami, Florida. Mr. Black served as senior vice president and was in charge of North American division. The complaint states that Mr. Black had daily access to trade secrets including strategic planning. According to a report from the Indianapolis Business Journal, Mr. Black has admitted to removing confidential information such as business plans, spreadsheets, accounting information and customer lists from Brightpoint.

Practice Tip: This case makes a claim under Indiana’s Trade Secrets Act, which allows a plaintiff to seek an injunction and damages when someone has misappropriated a trade secret.

December 19, 2011

International Trade Commission to Revisit Ruling in Smart Phone Patent Infringement Claim

By Overhauser Law Offices, LLC

Washington, D.C. – The U.S. International Trade Commission announced that it will revisit a ruling by an administrative law judge finding that Apple had not infringed four of HTC’s patents. In May 2010, patent attorneys for HTC filed a complaint with the ITC alleging that Apple’s IPods, IPhones and IPads infringe upon HTC’s patents. HTC asked the commission to ban all imports of IPods, IPhones and IPads. In July, the ALJ issued a 200+ page ruling finding no patent infringement. Friday’s decision by the ITC will only review one of the four patents that HTC claims has been infringed. Now a panel of six commissioners will look at whether that patent was infringed.

Reuters.com described the case as “a proxy for the larger fight for market share between Google Inc’s Android cellphones and tablets, many of which HTC makes, and Apple’s products.” Patent attorneys for Apple have filed a similar complaint with the ITC and in the U.S. District Court of Delaware alleging that HTC’s smart phones infringe Apple’s patents.

Practice Tip: As the Reuters.com’s story points out, Apple, Samsung, HTC, Microsoft and Motorola all have current patent infringement litigation pending over smart phone technology. Expect to hear more about patent infringement cases involving smart phones.
Continue reading

December 17, 2011

Organic Seed Growers Bring Innovative Patent Challenge Against Monsanto

By Overhauser Law Offices, LLC

New York, NY – Earlier this year, patent attorneys for a group of 60 organizations and farmers, including the Organic Seed Growers and Trade Association, filed a patent lawsuit in the Southern District of New York against agriculture giant Monsanto Company of St. Louis, Missouri. The plaintiffs are farmers who do not want their organic seeds contaminated by the transgentic or genetically modified seeds that are produced and patented by Monsanto. The feared contamination occurs when organic seeds come into contact with genetic material from transgentic seeds through natural pollination processes, such as the wind blowing transgentic pollen to a organic farm nearby . The plaintiffs allege that, given Monsanto’s reputation for vigorously defending its patents, they have brought “this action to protect themselves from ever being accused of infringing patents on transgenic seed.” Their complaint begins: “Society stands on the precipice of forever being bound to transgenic agriculture and transgenic food. Coexistence between transgenic seed and organic seed is impossible because transgenic seed contaminates and eventually overcomes organic seed. ” The organic farmers seek a declaratory judgment that all of Monsanto’s transgentic seed patents are invalid as injurious to public health and for numerous other reasons.

Monsanto has filed a motion to dismiss arguing that the plaintiffs have not demonstrated a justiciable case or controversy and therefore the court does not have subject matter jurisdiction. Monsanto also states that it has issued a public statement declaring that its patent attorneys will not file patent infringement lawsuits against farmers who’s crops are inadvertently contaminated by its patented seeds. Monsanto is being represented by former U.S. Solicitor General Seth Waxman.

Briefing on the motion to dismiss was completed in late August so a decision could be expected at any time. An amicus curiae brief in support of plaintiffs has also been filed.

Practice Tip: Monsanto is an aggressive litigant in defending its intellectual property rights and has sued numerous Indiana farmers. Monsanto recently won the appeal of the Southern District of Indiana‘s decision against an Indiana farmer in patent infringement lawsuit, which Indiana Intellectual Property Law and News blogged about here: US Court of Appeals for the Federal Circuit Affirms the Southern District Court of Indiana’s Decision Holding Indiana Farmer Infringed Soybean Seed Patents.
Continue reading